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Ark. school district seeks high court review of armbands case

By David L. Hudson Jr.
First Amendment scholar
12.23.08

A recent appeal to the nation’s highest court by an Arkansas school district seeks to limit the application of a Supreme Court standard in cases involving challenges to school-uniform policies. The case involves black-armband protests by students against the Watson Chapel School District’s adoption of a new uniform policy.

Nearly 40 years ago, the Supreme Court upheld the right of public school students to wear black armbands to protest U.S. involvement in the Vietnam War, writing in Tinker v. Des Moines Independent Community School Dist. (1969) that students do not shed their First Amendment rights at the “schoolhouse gate.” The Court emphasized the students’ right to engage in peaceful, political speech on an important issue even in school as long as school officials could not show that the speech could cause a substantial disruption of school activities or invade the rights of others.

In the current case, Watson Chapel school officials punished three students for violating a so-called “uniformity” requirement, which provided that: “any attempt to defeat the uniformity intended by this policy is prohibited.” A federal judge and a federal appeals court both ruled in favor of the students in Lowry v. Watson Chapel School District, reasoning that the Tinker case controlled. The school district had stipulated that the armbands had not caused a substantial disruption of school activities. However, the school district argued that the Tinker case did not apply to a local school-dress issue, quoting the following passage in Tinker: “The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair styles or deportment.”

In its opinion, the 8th U.S. Circuit Court of Appeals rejected the school district’s distinction between the armband protest in Tinker over Vietnam and the armband protest in Lowry over school dress. “This distinction is immaterial,” the appeals court wrote. “Whether student speech protests national foreign policy or local school board policy is not constitutionally significant. … We hold that Tinker is so similar in all constitutionally relevant facts that its holding is dispositive.”

However, in its petition to the Supreme Court in Watson Chapel School District v. Lowry, the school district attempts to circumvent Tinker by arguing that the Tinker standard should not apply when the underlying dispute or protest concerns a school-uniform policy. “This uniform is the functional equivalent of school sponsored speech discussed in Hazelwood School District v. Kuhlmeier,” the school district writes.

It is true that the Supreme Court applied a more lenient standard for school officials with respect to school-sponsored student speech in its 1988 ruling in Hazelwood, creating a standard remarkably similar to one used to evaluate restrictions on prisoners’ constitutional rights. The Hazelwood standard — restrictions on speech must be reasonably related to legitimate pedagogical (educational) concerns — resembles the one offered a year earlier in the prison-censorship decision Turner v. Safley — restrictions must be reasonably related to legitimate penological concerns.

The school district points out that several lower courts have not applied the Tinker standard to challenges to school-uniform policies. However, just because a school-uniform policy may be constitutional does not mean that school officials can silence any peaceful, nondisruptive student protest or expression against the dress policy.

The Court’s Tinker opinion also said: “In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved.”


Update
High court turns away Ark. district's appeal of armbands ruling
Lower courts had found that Watson Chapel School District violated students' free speech when it punished them for protesting dress code. 03.05.09

Related

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By David L. Hudson Jr. Administrators receive 4 out of 14 Muzzle awards as Thomas Jefferson Center announces 16th class of recipients of dubious distinction. 04.10.07

8th Circuit: Students can wear armbands to protest dress code

Panel upholds ruling that found Arkansas school district violated First Amendment rights of students disciplined for protesting uniform policy. 09.03.08

Common sense — and good law — prevails in student-speech dispute

By Gene Policinski Decision squarely affirms that non-disruptive student speech, be it on issues of international interest or on local policies, is protected. 09.07.08

Clothing, dress codes & uniforms

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